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particular product in the usual course of business it may not be held liable.
(2) The caution of the legal temperament, as well as the desire for certainty historically has accounted for the slow pace of change in the law.
(3) No drilling work shall be carried out on this land within 50 metres of any residence currently situated on said land without the lessor’s consent.
(4) This lawyer said the client is the best trial advocate he had ever had working on one of his cases.
(5) John drafted the contract for the client during the meeting itself and he then read it through carefully.
SEXIST LANGUAGE 6.2
Personal pronouns 6.2.1
It is inappropriate to use the personal pronouns he or his to refer to a person whose sex might be male or female. English has a number of gender-neutral words such as person, as well as a number of gender-neutral pronouns such as anyone, everyone and no one. However, it does not have gender-neutral singular personal pronouns.
A good workaround is to use the plural possessive form, their. The Oxford English Dictionary 2001 sanctions the use of this form to refer to ‘belonging or associated with a person whose sex is not specified’. In this way, the writer can avoid using sexist language. For example:
Every competent lawyer must ensure that their legal knowledge is kept up to date.
Other methods can also be employed to avoid using he or his. These include:
G Deleting the pronoun reference altogether if possible. For example, ‘the director read the documents as soon as they were delivered to him’:
delete to him.’
G Changing the pronoun to an article like a or the. For example, ‘the sales representative assisted the customer with his order’ can be changed to
‘the sales representative assisted the customer with the order’.
G Using who, especially when he follows if. For example, ‘if he does not pay attention to detail, a finance officer is worse than useless’ should read ‘a finance officer who does not pay attention to detail is worse than useless’.
G Repeating the noun instead of using a pronoun. For example, ‘When considering the conduct of negotiations, the delegate should retain an objective view. In particular, he [read the delegate] should . . .’
G Use the plural form of the noun. For example, instead of writing ‘a lawyer must check that he has all the relevant papers before attending court’, write ‘lawyers must check that they have all the relevant papers before attending court’.
G Use the infinitive form of the verb, including ‘to’ (e.g. ‘to perform’, ‘to draft’ etc.). For example, instead of writing ‘the lawyer agrees that he will draft the contract’, write ‘the lawyer agrees to draft the contract’.
G If all else fails, use the passive form. For example, instead of writing ‘he must deliver the files to X’, write ‘the files must be delivered to X’.
However, note that this is not a perfect solution, since the passive form makes it unclear who is responsible for delivering the files to X. Therefore, it should only be used if the identity of the parties has already been established in a previous sentence, or if the question of who is responsible for undertaking the actions is unimportant.
Terminology 6.2.2
In addition to paying attention to the use of personal pronouns, it is also important to ensure as far as possible that the terminology used is not gender-specific. This applies particularly to words ending in -man. For example, you should consider using chair instead of chairman, firefighter instead of fireman, and drafter instead of draftsman.
It should be remembered, however, that there is a limit to the extent to which the English language can reasonably be manipulated to remove all possible traces of gender discrimination. There is a balance to be struck between avoiding the use of gender-specific language and making your English sound like normal language.
A particular problem arises in respect of words for which the only gender-neutral equivalent involves the use of -person or person-. Words such as
personpower, warehouseperson and foreperson (instead of foreman) should be avoided where possible.
Equally, avoiding sexist language in English writing is not simply a matter of avoiding certain specific words and phrases. The underlying attitudes of the writer are more important.
Some examples of old-fashioned terms and suggested non-sexist alternatives are set out below.
Old-fashioned term Nonsexist equivalent
Air hostess/stewardess Flight attendant
Anchorman Anchor
Businessman Business executive, manager, entrepreneur
Cameraman Camera operator, photographer
Chairman Chair
Craftsman Artisan
Deliveryman Courier, messenger, delivery driver
Draftsman Drafter
Fireman Firefighter
Foreman (in the workplace) Supervisor
Foreman (of a jury) Presiding juror
Freshman Fresher, first-year student
Headmaster Head, principal
Juryman Juror
Mankind Humankind/humanity
Man-made Synthetic, manufactured
Manpower Workforce, personnel
Ombudsman Ombuds
Policeman/policewoman Police Officer
Postman/mailman Postal worker, mail carrier
Salesman Sales representative
Spokesman Representative
Statesman Political leader
Statesmanship Diplomacy
The common man The average person
Warehouseman Warehouser
Workman Worker
Rewrite the sentences below in such a way as to remove any inherent sexism.
EXERCISE 17
The answers can be found in the answer key at the back of the book.
Alternatively, visit the Companion Website to access this question online.
(1) A judge should meet his responsibility to avoid any suspicion of bias in his judgment.
(2) If a student cannot write competently, he cannot expect to make a good lawyer in the future.
(3) A lawyer knows better than the layman that knowledge of where to find the law is at least as useful as knowledge of specific legal provisions.
(4) When commencing court proceedings, the lawyer must ensure that his client has been fully advised about the risks of litigation. In particular, he must give the client a realistic estimate of the likely costs.
(5) The distributor hereby undertakes that upon termination of this contract he will return to the Company all confidential papers.
CONSTANTLY LITIGATED WORDS 6.3
Two words and phrases, commonly used in English legal drafting have produced constant litigation: best endeavours and forthwith.
Best endeavours is often used in contracts to indicate that parties have promised to attempt to do something. The use of the phrase usually suggests a compromise in which neither party is prepared to accept a clear statement of their obligations.
The problem with the phrase is that there are no objective criteria by which best endeavours can be judged. It is easy to conclude that someone has used ‘best endeavours’ to ensure that something is done if the result is that the thing is done.
It is very hard to make the same judgment if, despite certain efforts having been made, the thing is not done.
The phrase poses particular problems in professional undertakings (such as
‘X promises to use its best endeavours to obtain the title deeds’) due to the vagueness it introduces into the obligation undertaken. For this reason, the Law Society of England and Wales has warned solicitors against giving a ‘best endeavours’ undertaking.
Forthwith causes problems because it is too open-ended to introduce any certainty into the contract. According to the context, ‘forthwith’ could mean a matter of hours or a matter of weeks.
Everything depends on the context. For example, in one English case ‘forthwith’
was held to be within 14 days. In another it was held that notice entered on a Friday and given the following Monday was not given ‘forthwith’. In yet another, the duty to submit a claim ‘forthwith’ was held not to arise until a particular state department had the basic information to allow the claim to be determined.
For these reasons, it is preferable to specify a precise time and date by which something must be done if time is of the essence in an agreement.
FALSE WORD PAIRS 6.4
Many words in English look and sound alike but can have very different meanings.
Typical examples include principal and principle, affect and effect, and disinterested and uninterested. In some cases – as in prescribe and proscribe – the meanings may in fact be opposite.
It is important to be aware of the more common of these false pairs – the consequences of confusing them could be disastrous. For more information on this subject, see the glossary of easily confused words at the back of the book.
Choose the correct word from the choices given in brackets in respect of
EXERCISE 18
each sentence. The answers can be found in the answer key at the back of the book.
Alternatively, visit the Companion Website to access this question online.
(1) You are not (eligible/illegible) to practise as a lawyer in this country unless you have received official authorisation to do so.
(2) The testimony given by the witness was not entirely (credible/creditable).
(3) I have always been completely (disinterested/uninterested) in what judges do in their spare time.
(4) It is an important legal (principal/principle) that the accused should be presumed to be not guilty until proven guilty.
(5) The present economic recession will (affect/effect) this company adversely.
PROBLEM WORDS 6.5
Certain words cause problems, either because they have a number of meanings or because it is unclear to writers when one word should be used instead of another. It may not be possible to avoid them – particularly since many such
words are extremely useful (when used correctly) – but care should be taken when using the following words, among others.
Only 6.5.1
Only, when used as an adverb, has four meanings:
1 It can be used to mean ‘nothing or no one else but’ (‘only qualified lawyers are able to draft these documents’).
2 It can also be used to mean ‘with the negative result that’ (‘he turned, only to find his path was blocked’).
3 A further meaning is ‘no longer ago than’ (‘it was only on Thursday that the document arrived’).
4 Lastly, it can mean ‘not until’ (‘we can finalise the contract only when the document arrives’).
The positioning of this word in a sentence is of critical importance. The meaning of the whole sentence can change profoundly according to where it is placed.
Generally, it should go immediately in front of the word or phrase which it is qualifying: for example, ‘the only cows are seen on the northern plain’ has a different meaning to ‘the cows are only seen on the northern plain’, which in turn has a different meaning to ‘the cows are seen on only the northern plain’.
Fewer or less? 6.5.2
These words are often used incorrectly, even by native speakers of English.
Fewer should be used with plural nouns, as in ‘eat fewer cakes’ or ‘there are fewer people here today’.
Less should be used with nouns referring to things that cannot be counted, as in ‘there is less blossom on this tree’. It is wrong to use less with a plural noun (‘less people’, ‘less cakes’).
Can or may? 6.5.3
Can is mainly used to mean ‘to be able to’, as in the sentence ‘Can he move?’, which means, is he physically able to move?
May is used when asking to be allowed to do something as in ‘may we leave now?’, as can is thought to be less correct or less polite in such cases.
Imply or infer? 6.5.4
Do not confuse the words imply and infer. They can describe the same situation, but from different points of view.
If a speaker or writer implies something, as in ‘he implied that the manager was a fool’, it means that the person is suggesting something though not saying it directly.
If you infer something from what has been said, as in ‘we inferred from his words that the manager is a fool’, this means that you come to the conclusion that this is what they really mean.
Non- or un-?
6.5.5
The prefixes non- and un- both mean ‘not’ but they tend to be used in slightly different ways. Non- is more neutral in meaning, while un- means an opposite and thus often suggests a particular bias or standpoint.
For example, unnatural means that something is not natural in a bad way, whereas non-natural simply means ‘not natural’.
As a consequence, where there is a genuine choice about which prefix to use, non- is preferred in legal writing (e.g. non-statutory instead of unstatutory).
If or whether?
6.5.6
Although if can mean ‘whether’, it is better to use the word whether rather than if in writing (‘I’ll see whether he left an address’ rather than ‘I’ll see if he left an address’).
Specially or especially?
6.5.7
Although especially and specially can both mean ‘particularly’, they are not exactly the same. Especially also means ‘in particular, chiefly’, as in ‘he distrusted them all, especially Karen’, while specially also means ‘for a special purpose’ as in
‘the machine was specially built for this job’.
6.5.8 Save
Save usually means to rescue from harm or danger. However, it can also be used to mean ‘except’. It is frequently used in this sense in legal documents. For example:
No warranties are given save as to those set out in Schedule 3.
Client or customer?
6.5.9
Generally speaking, businesses that provide professional services (e.g. lawyers, accountants) have clients, while businesses that sell products (e.g. retailers) have customers.
Choose the correct word from the alternatives provided in parentheses in the
EXERCISE 19
sentences below. The answers can be found in the answer key at the back of the book.
Alternatively, visit the Companion Website to access this question online.
(1) There are (less/fewer) risks in this transaction than I had previously assumed.
(2) The hardware store did not have many (customers/clients) that morning.
(3) It (can/may) be a good idea to send a copy of that document to the client.
(4) I dislike all English food, (specially/especially) fish and chips.
(5) I asked him to help me with this project but I’m afraid he was most (uncooperative/non-cooperative).
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